Way Off The Mark In Denying PTI To Undocumented Aliens

A recent Appellate Division decision
barred admission by undocumented
aliens into the pretrial intervention
program and, in so doing, ignored
state and federal law. The ruling contains
no citation to federal immigration
law nor to Caballero v. Martinez, 186
N.J. 548 (2006), in which the New
Jersey Supreme Court held that an
undocumented alien's status was irrelevant
to a question under state law.
While the Appellate Division decision
on Jan. 10 in State v. Liviaz and Claros-Benitez, A-5136-05, said the prosecutor
may consider a person's status as an
undocumented alien, it held that PTI
could not be denied solely on that basis.
That is belied by the basis on which PTI
was denied to Dennis Claros-Benitez.

The appeals court noted that the
prosecutor "emphasized the length of
defendant's illegal stay in this country,
his complete failure to gain legal status,
his ‘working under-the-table,' and his
involvement in fraud and subterfuge to
remain here."

The emphasis on Benitez's illegal
stay and failure to gain legal status is
exactly what makes him an undocumented
alien. He is being rejected
because of his undocumented status. In
addition, lots of people have been paid
under the table and accepted into PTI,
yet he was rejected.

The opinion does not say what fraud
and subterfuge Benitez used to stay in
the United States. We do know that he
was indicted on charges of forging a
vehicle title and obtaining a fake driver's
license and other government identification.
This, too, is a result of his undocumented
status, because undocumented
aliens cannot obtain a driver's license.
All Benitez wanted to do was own a car
and drive.

Being an undocumented alien is not
a criminal offense in New Jersey, and it
cannot be. Consideration of the factors
that make Benitez an undocumented
alien is legally irrelevant in rejecting, or
accepting him, to PTI.

The prosecutor claims that having
proper identification is in the interest of
our national security. Remember 9/11?
Those murderers were here on visas,
legally. Ninety-nine percent of undocumented
aliens come here to work, to
support their families. They have more
incentive than citizens to be law-abiding.
In addition to facing jail if they
commit a crime, they can be deported,
even if their spouse or child is a citizen.

The federal government has exclusive
jurisdiction over immigration, as
noted in Hines v. Davidowitz, 312 U.S.
52 (1941); De Canas v. Baca, 424 U.S.
351 (1976); and Plyler v. Doe, 457 U.S.
202 (1982). Only the federal government
can adopt a statute keeping people
in or out of the country. New Jersey has
no authority to tell an individual he or
she cannot reside in the state. The only
crimes the defendant commits by
remaining in New Jersey without registering
with immigration authorities are
federal offenses. And violation of immigration
laws cannot be made a state
crime. As far as New Jersey is concerned,
Benitez has not committed any
criminal act by being here.

Other than those statutes focusing
on improper entry and failure to register,
the immigration laws are civil in nature.
The New Jersey Supreme Court has
never held that violation of a civil law is
a reason to deny admission to PTI. That
would be equivalent to denying admission
based on failing to pay taxes on
time, breaching a contract or causing an
accident.

Claros-Benitez has never been
charged with, nor convicted of, the federal
crime of failing to register. The New
Jersey Supreme Court has never denied
admission to PTI based on conduct that
has not led to a charge or an indictment.
And even if an individual had been convicted
of failing to register, he or she
would still be entitled to PTI because
failing to register is not a crime in New
Jersey. Moreover, as noted in State v.
McKeon, 385 N.J. Super. 559 (App.
Div., 2006), disparate treatment is not
permitted when determining eligibility
for PTI. Singling out undocumented
aliens is subjecting them to disparate
treatment, according to Plyler.

Since immigration status is
now relevant to PTI, the New Jersey
Superior Court will have to determine
whether an individual is illegal under
immigration law. Defense counsel are
entitled to subpoena immigration officers
and documents. And courts will
have to determine whether a defendant
is eligible for asylum or temporary
protected status; whether a defendant
who is eligible but has not yet applied
for either status is legal, and whether
granting relief from deportation
means that immigration authorities
have decided there is no continuing
pattern of antisocial behavior. Yet the
Superior Court cannot adjudicate
immigration claims, for they are federal
matters.

Finally, it is up to the
Legislature, not the courts, to decide
whether undocumented aliens can be
admitted to PTI.